In Digital Vending Services International v. The University of Phoenix, et al., Action No. 2:09CV555 (E.D.Va. Oct. 3, 2013), the defendants sought spoliation sanctions for a missing thumb drive containing plaintiff ESI. It was undisputed that the thumb drive was lost; the only question before the district court was whether that warranted sanctions. To make a prima facie case for spoliation sanctions, the court required:
1. That the party had a duty to preserve “unique, relevant evidence.” In this case, the scope of litigation was such that the duty to preserve evidence was very high, and that evidence contained within the thumb drive was unique.
2. In the Fourth Circuit, a party must demonstrate a culpable state of mind that includes a level of fault, be it “bad faith, willfulness, gross negligence or ordinary negligence.” The appropriate sanction would be determined by the party’s culpable state of mind. However, the court declined to find that plaintiff had the requisite state of mind for any spoliation sanction, as the defendant failed to offer any evidence of culpability.
3. The party must demonstrate that the lost evidence would be relevant to a claim or defense, which is a standard more substantial than required by Rule 401 of the Federal Rule of Evidence. Such relevancy must also be substantiated by probative evidence, not mere argument. In this case, not only did the defendants fail to meet this burden, but did not even prove there was any evidence on the missing thumb drive at all. They only offered speculation that there might be evidence contained within the drive. Although relevance can be presumed in some cases where a culpable state of mind was shown, this was not the case here.
As the defendants failed to demonstrate intentional destruction by culpable state of mind and relevancy, they failed to make a prima facie showing for spoliation sanctions.